Chantal Hébert: Will Quebec be the next province to use the ‘notwithstanding’ clause?

Chances are Ontario’s Doug Ford will not for long be the only premier to bypass the Charter of Rights and Freedoms to push through a controversial item on his legislative agenda.

Depending on the outcome of the Quebec Oct. 1 election, Prime Minister Justin Trudeau’s home province could be next.

But if that were to happen it would not be as a result of a domino effect triggered by Ford’s use of the ‘notwithstanding’ clause of the Constitution to have his way in the legal battle over the size of Toronto’s next municipal government.

The prospect of a move along similar lines was part of Quebec’s longstanding debate over the place of religious rights in a secular society before this week’s developments at Queen’s Park.

A Coalition Avenir Québec or a Parti Québécois government would scrap the controversial Liberal law that prescribes public services be received and dispensed with one’s face uncovered.

They would replace the so-called veil ban with the imposition of a secular dress code on public servants deemed to be in a position of authority. The list includes judges, prison guards, teachers and, in the case of the PQ, child care workers.

If the courts found that approach to be unconstitutional, CAQ and PQ leaders François Legault and Jean-François Lisée have both said they would have no qualms about using the notwithstanding clause to forge ahead.

At midcampaign, the notion that two of the main contenders for government in Quebec would not let the Charter stand in the way of their secularism agendas has not emerged as a wedge issue. That’s not a hill Philippe Couillard’s Liberals want to risk dying on between now and Oct. 1.

Their government’s veil ban has yet to be enforced. The courts have suspended its application until a challenge to its constitutionality has been adjudicated. Based on his previous statements, Couillard would not — should his party win power next month and the courts invalidate its veil law — be inclined to salvage it by using the notwithstanding clause.

But the premier is also on record as saying that the notwithstanding clause exists for a purpose; that it is there to be used by governments. And indeed, the Quebec Liberals have done exactly that in the not-so-distant past.

In 1988, the government of then-premier Robert Bourassa overruled a Supreme Court ruling that found the province’s French-only sign law to be in breach of the Charter. That cost Quebec’s Liberal government a critical amount of goodwill on the constitutional front. It contributed to the 1990 demise of the Meech Lake Accord. It also earned the province a black eye in many international circles. When the clause expired five years later, Bourassa’s government did not renew it. Instead it belatedly aligned the sign law with the Supreme Court’s prescriptions.

Now, as then, the federal government has the power to disallow a provincial law. But that power has not been used since 1943 and, by all indications, the current prime minister is no more inclined to dust it off than his father was at the time of the introduction of the PQ’s language law in the late seventies.

On Tuesday, Trudeau said he would leave it to Ontario voters to judge whether Ford’s decision to reach for the biggest hammer in the constitutional toolbox to quash opposition to his bid to shrink Toronto’s municipal government in the middle of an election campaign was appropriate.

If the prime minister used the constitutional levers at his disposal to intervene in the dispute between Queen’s Park and Toronto city hall, he would set himself up to do likewise if the next Quebec government ever does suspend some of the Charter rights enjoyed by the province’s religious minorities.

It is hard to think of anything more likely to trigger an all-out Ottawa/Quebec brawl than a move by a federal government to nullify a law passed in the National Assembly.

The notwithstanding clause is more widely seen as a legitimate tool in Quebec than anywhere else in Canada. But it would be simplistic to conclude that repeated use has normalized the practice. The province’s difficult history with constitutional politics and the autonomist instincts of its francophone majority largely account for the difference.

It is too early to know whether Ford’s use of the notwithstanding clause will start a trend that will spread to other provincial capitals or, on the contrary, make reaching out for it more politically toxic everywhere. But without support to do away with the clause from either Ontario or Quebec, it is not about to be written out of the Constitution.

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About AndrewAndrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.